U.S. Department of .

Justice

Executive Office for Immigration Review

Board of Immigration Appeals
Office of the Clerk
5/07 Leesburg Pike. Suite 2000
Falls Church. l'irg1ma 20530

DHS/ICE Office of Chief Counsel - LOS

606 S. Olive Street, 8th Floor
Los Angeles, CA 90014

Name: CORDOVA-RAMIREZ, MAGDA E...

A 205-485-321
Date of this notice: 6/12/2015

Enclosed is a copy of the Board's decision and order in the above-referenced case.

Dun.rtL c
Sincerely,

t1/lA)

Donna Carr
Chief Clerk
Enclosure
Panel Members:
Grant, Edward R.

Userteam: Docket

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Cite as: Magda Esperanza Cordova-Ramirez, A205 485 321 (BIA June 12, 2015)

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U.S. Department of Justice

Executive Office for Immigration Review

Decision of the Board of Immigration Appeals

Falls Church. Virginia 20530

File: A205 485 321-Los Angeles, CA

Date:

In re: MAGDA ESPERANZA CORDOVA-RAMIREZ

JUN 192015

APPEAL
ON BEHALF OF RESPONDENT: Alejandro Garcia, Esquire
APPLICATION: Reopening
The respondent, a native and citizen of Guatemala, was ordered removed in absentia on
July 9, 2014. On August 13, 2014, the respondent filed a motion to reopen proceedings, which
the Immigration Judge denied on October 2, 2014. The respondent filed a timely appeal of that
decision. The Department of Homeland Security (OHS) has not filed a reply to the appeal. The
appeal will be sustained.
Upon de novo review, in light of the totality of circumstances presented in this case,
including the respondent's affidavit indicating that while other Immigration Court notices were
received, the NOH was not received at the address she provided and at which she continues to
live, we will sustain the appeal and allow the respondent another opportunity to appear for a
hearing. See Salta v. INS, 314 F.3d 1076 (9th Cir. 2002) (finding under the circumstances, a
sworn affidavit from the alien that neither she nor a responsible party residing at her address
received the notice was sufficient to rebut the presumption of delivery).
ORDER: The appeal is sustained, e in absentia order is vacated, proceedings are reopened,
and the record is remanded to the Immigration Jdge for further proceedings.

Cite as: Magda Esperanza Cordova-Ramirez, A205 485 321 (BIA June 12, 2015)

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IN REMOVAL PROCEEDINGS

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
1 CANAL PL-365 CANAL ST, 2450A
NEW ORLEANS, LA 70130

FILE A 205-485-321
IN THE MATTER OF
CORDOVA-RAMIREZ, MAGDA ESPERANZA

DATE: Oct 2, 2014

UNABLE TO FORWARD - NO ADDRESS PROVIDED

...../ ATTACHED IS A COPY OF THE DECISION OF THE IMMIGRATION JUDGE. THIS DECISION
IS FINAL UNLESS AN APPEAL IS FILED WITH THE BOARD OF IMMIGRATION APPEALS
WITHIN 30 CALENDAR DAYS OF THE DATE OF THE MAILING OF THIS WRITTEN DECISION.
SEE THE ENCLOSED FORMS AND INSTRUCTIONS FOR PROPERLY PREPARING YOUR APPEAL.
YOUR NOTICE OF APPEAL, ATTACHED DOCUMENTS, AND FEE OR FEE WAIVER REQUEST
MUST BE MAILED TO:
BOARD OF IMMIGRATION APPEALS
OFFICE OF THE CLERK
5107 Leesburg Pike, Suite 2000
FALLS CHURCH, VA 20530
ATTACHED IS A COPY OF THE DECISION OF THE IMMIGRATION JUDGE AS THE RESULT
OF YOUR FAILURE TO APPEAR AT YOUR SCHEDULED DEPORTATION OR REMOVAL HEARING.
THIS DECISION IS FINAL UNLESS A MOTION TO REOPEN IS FILED IN ACCORDANCE
WITH SECTION 242B(c) (3) OF THE IMMIGRATION AND NATIONALITY ACT, 8 U.S.C.
SECTION 1252B(c)(3) IN DEPORTATION PROCEEDINGS OR SECTION 240(c)(6),
8 U.S.C. SECTION 1229a(c)(6) IN REMOVAL PROCEEDINGS. IF YOU FILE A MOTION
TO REOPEN, YOUR MOTION MUST BE FILED WITH THIS COURT:
IMMIGRATION COURT
1 CANAL PL-365 CANAL ST, 2450A
NEW ORLEANS, LA 70130
OTHER:

FF

CC:

, ,

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.
UNITED STATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
LOS ANGELES, CALIFORNIA

In the Matter of:

CORDOVA-RAMIREZ,
Magda Esperanza,
Respondent

)
)
)
)
)
)
)
)

IN REMOVAL PROCEEDINGS

CHARGE:

Section 212(a)(7){A)(i)(I) of the Immigration and Nationality Act {INA)

(2012)-not in possession ofa valid visa or entry document

APPLICATION:

Motion to Reopen

ON BEHALF OF RESPONDENT:
Alejandro Garcia, Esquire
6055 East Washington Boulevard, Suite 1045
Commerce, California 90040

ON BEHALF OF THE DEPARTMENT:

Assistant Chief Counsel
U.S. Department of Homeland Security
606 South Olive Street, Eighth Floor
Los Angeles, California 90014

DECISION AND ORDER OF THE IMMIGRATION JUDGE

I. Procedural History
Magda Esperanza Cordova-Ramirez (Respondent) is a native and citizen of Guatemala.
See Exh. 1. The Department of Homeland Security (Department) served Respondent with a
Notice to Appear (NTA) via regular mail on August 15, 2012. The NTA alleged that
Respondent was not a citizen or national of the United States and entered the United States near
Laredo, Texas on or about June 15, 2012, without a valid visa or entry document. Exh. 1.
Accordingly, the NTA charged her with inadmissibility pursuant to INA 212(a)(7)(A)(i)(I), as
an alien not in possession of a valid visa or entry document at the time of application for
admission. Id. Jurisdiction vested and removal proceedings commenced when the Department
filed the NTA with the New Orleans, Louisiana Immigration Court on August 15, 2012. 8
C.F.R. 1003.14(a) (2012).
Respondent was detained in Louisiana, during which time she retained counsel and
completed a credible fear interview. The hearing officer found she had a credible fear of
persecution or torture if removed to Guatemala, and the Department released her on bond. On
August 27, 2012, she filed a Form EOIR-33, Alien's Change of Address Form, with the Court,
which provided her new address in Arleta, California. Through counsel, Respondent filed a
motion for change of venue on February 3, 2014, in which Respondent admitted all allegations

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File Number: A205 485 321

.
and conceded the charge of removability in the NTA. Respondent's counsel also filed a motion
to withdraw contingent on a change of venue. The Court granted both motions on February 10,
2014, and Respondent's case was transferred from New Orleans to Los Angeles.

On June 20, 2014, the Court served Respondent with a Notice of Hearing (NOH), sent via
regular mail to the North Hollywood address, informing Respondent that her next hearing was
scheduled for July 9, 2014. Exh. 2. On July 9, 2014, Respondent failed to appear for her
hearing. The Court, proceeding in absentia, found that removability had been established by
clear, convincing and unequivocal evidence based on Respondent's prior admissions and
concession contained in the motion for change of venue. Accordingly, the Court ordered
Respondent removed to Guatemala.
On August 13, 2014, Respondent filed the pending motion to reopen on the basis of
improper notice, alleging that she did not she did not receive the NOH informing her of her July
9, 2014 hearing. See Respondent's Motion to Reopen at 1-2 (Aug. 13, 2014).
For the following reasons, this Court will deny Respondent's motion to reopen.
II. Law and Analysis

The Court may rescind an in absentia removal order upon a motion to reopen if the alien
demonstrates that she did not receive proper notice of the proceeding. INA 240(b)(5)(C)(ii);
see also 8 C.F.R. 1003.23(b)(4)(ii). Written notice of a scheduled proceeding must be given to
the alien in person or, if personal service is not practical, sent by mail to counsel of record or the
alien at the most recent address provided to the Attorney General. See INA 239(a)(l), (2);
Matter ofG-Y-R-, 23 I&N Dec. 181, 185 (BIA 2001).
Once the Department demonstrates that an NOH was sent by regular mail to an alien's
most recent address, there is a presumption of effective service. Matter ofM-R-A-, 24 I&N Dec.
665, 673 (BIA 2008). This is a weaker presumption than the Court applies to notice by certified
mail; however, an alien must present sufficient evidence that she did not receive the notice in
order to overcome this presumption. Sembiring v. Gonzales, 499 F.3d 981, 987 (9th Cir. 2007);
Salta v. INS, 314 F.3d 1076, 1079 (9th Cir. 2002); M-R-A-, 24 I&N Dec. at 673.
In determining whether a respondent has rebutted the lesser presumption of delivery, a
Court may consider: (1) the respondent's affidavit; (2) affidavits from family members or other
individuals who are knowledgeable about the facts relevant to whether notice was received; (3)
the respondent's actions upon learning of the in absentia order, and whether due diligence was
exercised in seeking to redress the situation; (4) any prior affirmative application for relief,
indicating that the respondent had an incentive to appear; (5) any prior application for relief filed
with the Immigration Court or any prima facie evidence in the record or the respondent's motion
of statutory eligibility for relief, indicating that the respondent had an incentive to appear; (6) the
respondent's previous attendance at Immigration Court hearings, if applicable; and (7) any other
2

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Respondent also filed a second Form EOIR-33 with the Court on February 3, 2014,
changing her address to "7346 Kraft Ave., N. Hollywood, CA. 91605" (North Hollywood
Address).

.
circumstances or evidence indicating possible nonreceipt of notice. M-R-A-, 24 I&N Dec. at
674. "Each case must be evaluated based on its own particular circumstances and evidence," and
the Court is "neither required to deny reopening if exactly such evidence is not provided nor
obliged to grant a motion, even if every type of evidence is submitted." Id.

Respondent has not submitted sufficient evidence to overcome the presumption of

delivery. See Sembiring, 499 F.3d at 987-88; M-R-A-, 24 I&N Dec. at 674. In support of her
claim, Respondent submitted a copy of her credible fear interview, as well as an affidavit in
which she states that she consulted with an immigration attorney on July 23, 2014, and only then
learned about the July 9, 2014 hearing and her in absentia removal order. See Respondent's
Mot. to Reopen, Tabs A and B. She also states in her affidavit that she has previously complied
will all immigration court orders, including the requirement to update her address. See
Respondent's Motion to Reopen, Tab B. The Court notes that Respondent acted diligently by
filing this motion to reopen within a month of leaming of the in absentia order. Id. However,
Respondent has not presented evidence that indicates nonreceipt of the NOH due to mail delivery
issues or any other reason. The Court further notes that the NOH was not returned as
undeliverable. Finally, although Respondent has submitted her credible fear interview, a finding
that an applicant has a credible fear does not establish prima facie eligibility for asylum. See
INA 235(b)(l)(B)(v).
In weighing both the positive and negative factors presented, the Court finds that
Respondent has failed to rebut the lesser presumption of delivery and has failed to demonstrate
that she did not receive proper notice of her July 9, 2014 hearing. As the Court finds that
Respondent received legally sufficient notice of her hearing, it declines to reopen her case on this
basis.
Accordingly, the following order shall be entered:
ORDER
IT IS HEREBY ORDERED that Respondent's motion to eopen be DENIED.

DATE:

'2,. /

'/A)ff
3

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The Court finds that Respondent received legally sufficient notice of her scheduled
hearing. A respondent can be properly charged with receiving constructive notice, even if she
did not personally see the mailed document. G-Y-R-, 23 I&N Dec. at 189. Respondent's most
recent address of record is the address contained in the Form EOIR-33, filed February 3, 2014.
The Court mailed the NOH on June 20, 2014, to this address. Exh. 2. Therefore, a presumption
of delivery exists. See Sembiring, 499 F.3d at 983; Salta, 314 F.3d at 1079.